Court No. - 36
Case :- WRIT - C No. - 19755 of 2019 Petitioner :- M/S Famous Bobin Works And Another Respondent :- Employees State Insurance Corporation And 3 Others Counsel for Petitioner :- Saurabh Srivastava Counsel for Respondent :- Rajesh Tewari,Sanjai Singh
Hon'ble Ajay Bhanot,J.
Heard Sri Saurabh Srivastava learned counsel for the petitioners, Sri Rajesh Tewari learned counsel for the respondents no. 1 to 3 and Sri Uma Dev Shukla learned counsel holding brief of Sri Sanjai Singh, learned counsel for the respondent Bank.
Sri Saurabh Srivastava, learned counsel for the petitioners contends that the order dated 15.11.2018 passed under Section 45A of the Employees' State Insurance Act is ex-parte to the petitioners. The show-cause notice was never served upon the petitioners. The petitioners got knowledge of the proceedings against them when the Bank proceeded to attach their account. The finding in regard to the refusal of the notice is incorrect. In any case, Sri Tanvir Ahmad is not an employee within the meaning of the Act. Consequently, the finding recorded that the employer has refused to receive the notice and the show cause notice is held to be served is arbitrary, illegal and perverse.
Faced with the aforesaid facts, Sri Rajesh Tewari, learned counsel for the respondent nos. 1 to 3 submits that the petitioners have alternative and efficacious remedy for filing an appeal against the impugned order.
Learned counsel for the petitioners Sri Saurabh Srivastava contends that the remedy of appeal is an onerous remedy, inasmuch as, which requires predeposit. In case the proceedings under Section 45A under the said Act are taken out in violation of statutory provisions and without affording any opportunity of hearing, then arbitrary amounts can be foisted upon the concerned employer.
I see merit in the submission of Sri Saurabh Srivastava, learned counsel for the petitioners.
Admittedly, Sri Rajesh Tewari, learned counsel for the respondent nos. 1 to 3 could not dispute the following facts:
1. The notice was served not upon the employer i.e. Nazeer Ahmad.
2. Findings in the order that the show-cause notice could not be served and therefore same were sent to the Branch Manager, Branch Officer, Panki to deliver the same to the employer, is a vague finding.
3. The manner of service and the reasons why the notice could not be served, have not been disclosed.
4. Service of notice is an essential prerequisite to exercise of powers under Section 45A of the Act.
Moreover, the notice was served upon the son of the petitioner no. 2 even as per the case of the respondents. Son of the petitioner no. 2 is not authorized to receive any such notice since the service of notice is found to be bad in law. He is not the employer under the Act.
This Court finds that the proceedings under Section 45A of the Act have been conducted in violation of the provisions of law and are inconsistent with the principles of natural justice.
No useful purpose would be served by keeping this writ petition pending.
The order dated 15.11.2018 passed by the respondent no. 2, Deputy Director, ESIC, Regional Office Panchdeep Bhawan, Sarvodaya, Kanpur is abritrary, illegal and is quashed.
It is open to the respondents to take fresh proceedings against the petitioners as per law.
At this stage, learned counsel for the respondent Sri Rajesh Tewari fairly submits that the petitioners should appear before the authorities alongwith all relevant records.
Sri Saurabh Srivastava, learned counsel for the petitioners submits that the petitioners are willing to join the enquiry against them to clear their names.
With the consent of parties, the following order is being passed.
i. The petitioners shall appear before the respondent no. 2, Deputy Director, ESIC, Regional Office Panchdeep Bhawan, Sarvodaya, Kanpur on 02.07.2019.
ii. The petitioners shall submit a detailed reply along with all relevant documents before the respondent no. 2 on 02.07.2019.
iii. The respondent no.2 shall pass a reasoned and a speaking order within a period of two months thereafter.
The money which has already been recovered, shall be subject to the final orders passed by the respondent no. 2.
The writ petition is partly allowed.
Order Date :- 4.6.2019 Dhananjai